Citation Nr: 1138005
Decision Date: 10/12/11 Archive Date: 10/19/11
DOCKET NO. 09-03 832 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Whether new and material evidence has been received to reopen a claim for service connection for a skin disorder, including dermatitis, eczema, and onychomycosis, to include as due to herbicide exposure.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Brian J. Milmoe, Counsel
INTRODUCTION
The Veteran served on active duty from February 1968 to February 1970, to include service in Vietnam.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, denying the Veteran's claim to reopen for a skin disorder, including dermatitis, eczema, and onychomycosis, to include as due to herbicide exposure.
The Veteran was scheduled to appear at a hearing before the Board, sitting at the RO, in March 2011, but prior to that hearing, the Veteran requested a postponement due to the death of his brother. Another Board hearing was then scheduled to occur in May 2011, but the Veteran did not appear and has not since furnished evidence of good cause for his failure to appear. No other hearing request remains pending.
The Board finds that new and material evidence with which to reopen the Veteran's previously denied claim for service connection for a skin disorder has been received by VA. That reopened claim is herein REMANDED to the RO via the VA's Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required on his part.
FINDINGS OF FACT
1. The Veteran's claim for service connection for a skin disorder was most recently denied by the Board in July 2001 and no appeal was filed.
2. Since the Board's July 2001decision, evidence was received by VA that was not previously before agency decision-makers, relates to an unestablished fact, and raises a reasonable possibility of entitlement to service connection for a skin disorder.
CONCLUSIONS OF LAW
1. The Board's decision of July 2001, denying service connection for a skin disorder, is final. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2001), currently 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2011).
2. New and material evidence has been received by VA since entry of the July 2001 decision to reopen the previously denied claim for service connection for a skin disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2011).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Given the favorable disposition of the claim, the Board need not assess VA's compliance with its duties to notify and to assist in the context of the issue of whether new and material evidence has been submitted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92; 57 Fed. Reg. 49,747 (1992).
It is well-established doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits of such case, and that a potential jurisdictional defect may be raised by the tribunal, sua sponte or by any party, at any state in the proceedings, and, once apparent, must be adjudicated. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996) . To that end, the Board must ascertain whether new and material evidence has been presented, before addressing the merits of any claim reopened.
In general, decisions of the agency of original jurisdiction (the RO) or by the Board that are not appealed within in the prescribed time period are final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. § 3.104. The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been finally disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. See Knightly v. Brown, 6 Vet. App. 200 (1994). Evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented) will be evaluated in the context of the entire record. See Evans v. Brown, 9 Vet. App. 273 (1996).
New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).
VA regulations do not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened and the law should be read so as to enable reopening rather than to preclude it. See Shade v. Shinseki, 24 Vet. App. 110 (2010).
Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an inservice incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed inservice disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).
Service connection for a skin disorder was denied on more than one prior occasion and most recently by a decision of the Board entered in July 2001. The Board determined that the Veteran's skin disorders were first shown many years after service and were not causally linked to service; therefore, the claim was denied. Following notice to the Veteran of the denial action and his appellate rights, a timely appeal was not initiated, thereby rendering final the Board's decision of July 2001. 38 U.S.C.A. § 7104(b) (West 1991); 38 C.F.R. § 20.1100 (2001), currently 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2011).
Given the finality of the denial of service connection in 2001, the question now presented for review is whether new and material evidence has been received by VA to reopen the Veteran's previously denied claim. This ordinarily necessitates a review of the evidence submitted prior to and subsequent to the most recent, final denial. However, since the last final denial, the record includes the Veteran's written statement, as set forth in his substantive appeal of January 2009 in the context of his July 2007 claim to reopen, that his skin disorder began shortly after he left Vietnam and that it continued to bother him to the present. The above-referenced evidence is presumed credible, although not its weight, per Justus v. Principi, 3 Vet. App. 510, 513 (1992), for the purpose of this limited inquiry, and in light of that lay evidence as to date of onset and a continuity of symptomatology, the Board concludes that the requisites of 38 C.F.R. § 3.156, including raising a reasonable possibility of substantiating the claim for service connection for a skin disorder, have been met. The previously denied claim is thus reopened. 38 U.S.C.A. § 5108.
ORDER
New and material evidence having been received, the claim for service connection for a skin disorder is reopened, and to that extent only, the appeal is granted.
REMAND
In connection with the Veteran's reopened claim for a skin disorder, additional development of the evidence is found to be in order. In addition to obtaining updated VA treatment records, it is advisable to obtain a VA medical examination and a medical opinion as to any existing link between current skin disability and military service or an event occurring therein, such as toxic herbicide exposure. Remand is required to effectuate this development. 38 C.F.R. § 19.9 (2011).
Accordingly, this portion of the Veteran's appeal is REMANDED for the following actions:
1. Obtain all VA treatment records from the North Texas Veterans Health Care System dated form October 2008 to the present.
2. Thereafter, afford the Veteran a VA skin examination in order to assess the nature and etiology of his claimed skin disorder, including but not limited to contact dermatitis, dyshydrotic eczema, onychomycosis, and its relationship to his period of military service or any event thereof, including presumed toxic herbicide exposure. The examination should include a clinical evaluation and any diagnostic studies deemed warranted by the examiner. The claims folder should be made available to the examiner in conjunction with the examination. All skin diagnoses should be fully detailed.
The VA examiner is requested to address the following question, providing a rationale for the opinion offered:
Is it at least as likely as not (50 percent or greater degree of probability) that any currently existing skin disorder of the Veteran originated in service or is otherwise the result of any inservice event, inclusive of the Veteran's presumed exposure to toxic herbicide in Vietnam?
The VA examiner is advised that the term as likely as not does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of a nexus as to find against any nexus to service. More likely and as likely support the contended relationship; less likely weighs against the claim.
3. Lastly, readjudicate the Veteran's reopened claim for service connection for a skin disorder, to include as due to herbicide exposure, and if the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be provided with a supplemental statement of the case and afforded an appropriate period of time for a response, before the record is returned to the Board for further review.
The appellant need take no action until otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
The purpose of this remand is to obtain additional development. No inference should be drawn regarding the final disposition of the claim(s) in question as a result of this action.
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
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ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).